Global Investigations Review - The law and practice of international investigations

Privilege

Last verified on Thursday 9th February 2017

China

Simon Hui and Cui Hailin
Baker McKenzie (China)

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. Under PRC Law, there is no equivalent regime of  attorney–client privilege similar to those  found in a common law  jurisdiction like the US. Nonetheless, under PRC Law, an attorney has an obligation to keep their clients’ information confidential. Therefore, our comments in this survey will focus on Chinese lawyers' duty of confidentiality.

    The key difference between these two legal concepts is that attorney-client privilege is attached to the communications which gives clients and/or their attorney the right not to disclose  privileged communications while the duty of confidentiality is an obligation imposed on a PRC lawyer, subject to a number of exceptions, from disclosing information obtained in the course of representing his or her clients.  

    Duty of confidentiality

    The Law of the People's Republic of China on Lawyers "Lawyers” Law) requires a Chinese lawyer to keep confidential any state secret or business secret obtained in the course of his/her professional activities, and not to disclose any privacy of the party concerned. This law further requires Chinese lawyers to keep confidential any information that his or her clients or other interested parties are unwilling to disclose publicly, unless the information concerns activities that may endanger national security, public security and seriously endanger the personal safety of others.

    In addition, the Criminal Procedure Law of the People's Republic of China provides that a defence lawyer in a criminal proceeding has the right not to disclose client-related information obtained in the course of representing his or her client unless the information concerns activities that may endanger national security, public security and seriously endanger the personal safety of others. This non-disclosure right also applies to government authorities, including the police, the prosecutor and the court.

    The exceptions to the lawyers' confidentiality obligations are as follows:

    First, the confidentiality obligation applies only to state secrets, commercial secrets, the privacy of their clients and any other information that their clients or other interested party are unwilling to disclose publicly.

    Second, lawyers have a mandatory obligation to disclose information relating to a crime that his or her client or other party is about to or is undertaking, which may endanger state security or public security or which may gravely threaten the personal safety of others.

    Third, except in criminal proceeding, the Chinese lawyers have a legal obligation to disclose client information if required to do so by judicial authorities and government agencies.

    • Civil Procedural Law of the People's Republic of China require all individuals that have knowledge of the circumstances of a case to give testimony in court. Lawyers are not excluded from this general obligation, although, in practice, it's extremely rare that lawyers are required to testify or give evidence against their own clients. The existence of such a broad legal obligation renders the confidentiality of communications between lawyers and clients very vulnerable.
    • Also, Chinese lawyers may be required to cooperate with regulatory authorities when their clients are under administrative investigations for violation of Chinese law such as Anti-Trust Law, Anti-Unfair Competition Law and Anti-Money Laundering Law. For example, Anti-Trust Law provides specifically that (i) the anti-monopoly law enforcement authorities may conduct interrogations of the business entity, interested parties, and other relevant entities and individuals and require these people to provide explanations; and (ii) business entity under investigation, interested parties; and other relevant entities or individuals shall cooperate with the anti-monopoly law enforcement authorities as they perform their duties, and shall not refuse or impede the investigation. Lawyers are not excluded from the above cooperative obligations although in practice, it is also extremely rare that lawyers are forced by the authorities to cooperate or disclose client-related confidential information. 
  3. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  4. The duty of confidentiality under PRC law does not make a distinction between legal and non-legal communications. All information (ie, state secrets, commercial secrets, the privacy of their clients and any other information that their clients or other interested party are unwilling to disclose publicly) that lawyers obtained in the course of carrying out their professional activities are protected under the confidentiality rules. 

  5. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  6. No, the Chinese law makes no such a distinction with respect to the lawyers' duty of confidentiality. However, information obtained in the course of representing a client in a criminal proceeding is subject to a stricter disclosure standard (ie, it should only be disclosed if it relates to activities that may endanger national security, public security and seriously endanger the personal safety of others.  

  7. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  8. The law only provides that lawyers shall keep confidential any state secret or business secrets obtained in the course of their activities, and may not disclose any privacy of the party concerned and that lawyers shall keep confidential any information that the client and others are unwilling to disclose.

    The law is silent with respect to whether the duty of confidentiality covers documents that were prepared prior to an attorney–client relationship. 

  9. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  10. As mentioned in question 1, lawyers bear a general obligation of keeping client's information confidential. In criminal proceedings, this confidentiality obligation can be relied upon by lawyers to refuse to disclose client-related information. Other than in the criminal proceedings, the duty of confidentiality has a number of exceptions. The Chinese lawyers may have to disclose client-related confidential information if he or she is required to do so by the regulatory authorities during the administrative investigations or civil justice authorities in civil litigation proceedings.  

  11. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  12. Chinese law is silent on this issue.

  13. 7.Are there any notable exceptions or caveats to the privilege?
  14. The exceptions to the duty of confidentiality include:

    • any fact or information that the client or other party is about to or is undertaking a crime that may endanger state security or public security or gravely threatens the personal safety of others;
    • information that the client agrees to disclose;
    • if disclosure is required by regulatory authorities during administrative investigations; or
    • if disclosure is required by judicial authorities in civil litigation proceedings.  
  15. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  16. No. There are no such laws unrelated to privilege that protect certain communications between attorney and client.

    Protected parties

  17. 9.To what extent does the privilege extend to in-house counsel? 
  18. In China, the duty of confidentiality does not extend to in-house counsel as the latter are not deemed as a lawyer by law, but merely an employee of a company.

  19. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  20. As long as the communications contain state secrets, business secrets or information that the client and others are unwilling to disclose, then the lawyer’s duty of confidentiality applies. It is irrelevant whether the communications are between a lawyer and the company or its employees.

  21. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  22. Chinese law is silent on this issue. 

    Nonetheless, the Standards of Conduct for Practicing Lawyers (for Trial Implementation) issued by All China Lawyers Association provides that no law firm, lawyer or support staff member may disclose any commercial secret or breach the privacy of any client, nor disclose any other client information acquired in the course of providing legal service to the client. According to this provision, the duty of confidentiality should also extend to law firms and support staff members. However, this document is the by-law of the association and has no legal binding effect. 

  23. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  24. Yes, the duty of confidentiality applies only to lawyers who are qualified lawyers to practise in China.

  25. 13.Is there an analogous privilege extended to non-lawyer professionals?
  26. No, we are not aware of any analogous confidentiality obligation extended to non-lawyer professionals.  

  27. 14.Does the privilege apply to communications with potential clients?
  28. Chinese law is currently silent on this issue. 

    Ownership of the privilege

  29. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  30. In China lawyers bear a general obligation to maintain confidential client-related information. Meanwhile, the Criminal Procedure Law provides the defence lawyers in criminal proceedings a right to refuse to disclose client-related information. Therefore, the holder of the confidentiality obligation is the lawyer.

  31. 16.Can the privilege be waived? Who may waive it?
  32. As mentioned in question 7, the lawyer may disclose the information if his or her client  agrees. 

  33. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  34. There is no such rule that the client shall agree to disclose either all information or nothing. It is acceptable that the client agrees to disclose only certain communications, but not others.

  35. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  36. Chinese law is silent on this issue. In practice, it is common for the two parties to engage the same counsel to represent them and communications are addressed to both of the two defendants. Therefore it is inevitable that the two defendants will share privileged information without waiver.  

  37. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  38. It is a common practice in China for lawyers and clients to either enter into a non-disclosure agreement which contain a confidentiality provision, or agree to a confidentiality provision in their service agreement.

    Enforcement considerations

  39. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  40. As mentioned in question 1, the lawyer's duty of confidentiality is provided by the Lawyers' Law and Criminal Procedural Law, which are statutes in nature.

    The Lawyers' Lawwas firstly adopted at the 19th Session of the Standing Committee of the 8th National People's Congress on 15 May 1996, and was lastly amended in 2012. The lawyer's duty of confidentiality under article 38 was newly added in the 2008 amendment. This is seen by many as one of the steps towards establishing the attorney–client privilege regime in China. However, this provision is too general and lacks detailed guidance in its application.

    Criminal Procedural Lawwas adopted at the 2nd Session of the 5th National People's Congress on 1 July 1979, and lastly amended in 2012. The defence lawyer's right of refusal to disclose client-related information is included in the 2012 amendment.

     

  41. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  42. The lawyer's duty of confidentiality as such is considered both as a procedural rule and a substantive right.

  43. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  44. The answer to this question is detailed under question 1.

  45. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  46. The rules mentioned above are applicable nationwide, but their implementation may vary from region to region, depending on the interpretations of local authorities.

  47. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  48. The Lawyers' Lawimposes a fine of up to 10,000 yuan, issuance of a warning and confiscation of any illegal proceeds for leak of business secrets or personal privacy; if the violation is severe, the lawyer will be suspended from practising law for three to sixmonths. If the lawyers leak state secrets, he or she may face a fine of 50,000 yuan, a suspension of his or her practising qualification for six months to one year, confiscation of any illegal proceeds, or even criminal prosecution. The Lawyers' Law is silent on the sanctions for disclosure of any other client related information.  

    The Standards of Conduct for Practicing Lawyers (for Trial Implementation) sets out very detailed disciplinary measures for breach of the standards therein including the confidentiality obligation. These include admonition, public reprimands, public denouncements and disqualification from membership of the lawyers' association, depending on the gravity of the breach. 

  49. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  50. See response to question 24.

  51. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  52.  See responses to question 1.

  53. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  54. The general principle under Chinese law with respect to burden of proof is that the burden is on the party who raises the claim. Therefore, if a client is accusing his/her lawyer for breaching the duty of confidentiality, the burden is on the client to prove that such breach has indeed occurred. 

  55. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  56. As mentioned in question 1, in criminal proceedings lawyers have the right of refusal when the authorities require them to disclose client-related information. However, in civil and administrative proceedings lawyers have no legal basis to invoke the duty of confidentiality to avoid the compulsory disclosure request, though such request rarely happens in practice.

    No distinction is made under Chinese law between documents held by the client and documents held by the attorney.

  57. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  58.  There is no specific choice-of-law rule determining which country’s privilege laws shall apply. However, the general rule is that any lawyers practising law in China, be it foreign lawyer or Chinese lawyer, shall be subject to Chinese law. 

    Termination of the privilege

  59. 30.Does the privilege terminate on the death of either the attorney or the client?
  60. N/A.

  61. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  62. The law is silent on this issue. However, Standards of Conduct for Practicing Lawyers (for Trial Implementation) contains a provision stating that a lawyer's duty to maintain client confidentiality shall continue after completion of all client matters. 

  63. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  64. As mentioned in question 1, where it comes to the knowledge of the defence lawyer that his or her client or other parties are about to or in the process of committing offences that endanger national security, public security and seriously endanger the personal security of others, he shall timely inform the judicial authority of such activities. Standards of Conduct for Practising Lawyers (for Trial Implementation) also contains a provision stating that where, in the course of representing a client, a lawyer innocently becomes involved in the client's criminal activities, he or she may disclose relevant client information to protect his or her own legal rights and interests.

  65. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  66. N/A.

  67. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?
  68. N/A.

Interested in contributing to this Know-how?

E-mail our Co-Publishing Manager


GIR Know-how is published free-to-view to give practitioners quick answers to important questions in cross-border investigations and compare law and practice across jurisdictions. If your country isn’t featured or you have feedback to share, please email Edward Perugia to find out more.

Questions

    Scope of the privilege

  1. 1.Are communications between an attorney and client protected? Under what circumstances?
  2. 2.Does the privilege only protect legal advice? Does it also protect non-legal communications between an attorney and client, such as business advice?
  3. 3.Is a distinction made between legal advice related to litigation and other legal advice?
  4. 4.What kinds of documents are protected by the privilege? Does it cover documents that were prepared in anticipation of an attorney-client communication?
  5. 5.To what extent must the communication be confidential? Who can be privy to the communication without breaking privilege?
  6. 6.Is the underlying information privileged if it can be obtained from a non-privileged source?
  7. 7.Are there any notable exceptions or caveats to the privilege?
  8. 8.Are there laws unrelated to privilege that may protect certain communications between attorney and client?
  9. Protected parties

  10. 9.To what extent does the privilege extend to in-house counsel? 
  11. 10.Does the privilege protect communications between an attorney and a corporate client’s employees? Under what circumstances?
  12. 11.Does the privilege protect communications between non-lawyers if they are acting at the direction of counsel or gathering information to provide to counsel?
  13. 12.Must the attorney be qualified to practise in your country to invoke the privilege?
  14. 13.Is there an analogous privilege extended to non-lawyer professionals?
  15. 14.Does the privilege apply to communications with potential clients?
  16. Ownership of the privilege

  17. 15.Does the attorney or the client hold the privilege? Who has rights under the privilege? 
  18. 16.Can the privilege be waived? Who may waive it?
  19. 17.Is waiver all or nothing? Is it possible to waive the privilege for certain communications but not others?
  20. 18.If two defendants are mounting a joint defence, can they share privileged information without waiver? What about two parties with a common interest?
  21. 19.Is it common for attorneys and clients to agree to a confidentiality provision in a contract?
  22. Enforcement considerations

  23. 20.Describe the legal basis of the rules governing the privilege. Are these rules found in a constitution or statute, or in case law?
  24. 21.Is the privilege primarily characterised as a procedural or evidentiary rule, or is it characterised as a substantive right? 
  25. 22.Describe any differences in how the privilege is applied in the criminal, civil, regulatory or investigatory context. 
  26. 23.Are the rules regarding the privilege uniform nationwide or are there regional variations within your country?
  27. 24.Does a professional organisation enforce the maintenance of the privilege among attorneys? What discipline do attorneys face if they violate privilege rules?
  28. 25.What sanctions do courts impose for violating the attorney–client privilege? 
  29. 26.How can parties invoke the privilege during investigations or court proceedings? Can the privilege be invoked on the witness stand?
  30. 27.In disputes relating to privilege, who typically bears the burden of proof? 
  31. 28.Does the privilege protect against compulsory disclosures such as search warrants or discovery requests? Is there a distinction between documents held by the client and documents held by the attorney? 
  32. 29.Describe the choice-of-law rules applied by your courts to determine which country’s privilege laws apply. To what extent does your country recognise the validity of choice-of-law provisions in contracts, particularly as they apply to privilege?
  33. Termination of the privilege

  34. 30.Does the privilege terminate on the death of either the attorney or the client?
  35. 31.Does the privilege terminate on the conclusion of the attorney-client relationship?
  36. 32.Is the privilege destroyed if the client communicates information to the attorney to further a crime or perpetuate a fraud?
  37. 33.Is the privilege terminated if the attorney makes an inadvertent disclosure? If such a disclosure is made, can the attorney retrieve the privileged information or otherwise correct the error?
  38. 34.Is the privilege terminated if a third party is included in the communication or is subsequently forwarded the communication?